G. Santhoshkumar and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** ## **WP(C) NO. 33431 OF 2014** ## **PETITIONERS:** 1 G.SANTHOSHKUMAR,AGED 49 YEARS S/O.LATE GOVINDA PANICKER, PUTHEN PURAYIL HOUSE THURUTHI BHAGOM, N.NAGAR P.O, AROOKUTTY VILLAGE CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN-688 559 2 P.G. SALILA KUMARI,D/O.LATE GOVINDA PANICKER, PUTHEN PURAYIL HOUSE THURUTHI BHAGOM, N.NAGAR P.O, AROOKUTTY VILLAGE CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN-688 559 3 P.G. SUNIL KUMAR,S/O.LATE GOVINDA PANICKER, PUTHEN PURAYIL HOUSE THURUTHI BHAGOM, N.NAGAR P.O, AROOKUTTY VILLAGE CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN-688 559 4 G.SANJEEV KUMAR,S/O.LATE GOVINDA PANICKER, PUTHEN PURAYIL HOUSE THURUTHI BHAGOM, N.NAGAR P.O, AROOKUTTY VILLAGE CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN-688 559 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY (REVENUE A.DEPARTMENT) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE LAND REVENUE COMMISSIONER THIRUVANANTHAPURAM - 695 001. 3 THE DISTRICT COLLECTOR,ALAPPUZHA, ALAPUZHA - 688 001. 4 THE TAHASILDAR CHERTHALA,PIN- 688 524 ## **OTHER PRESENT:** GP IMAM GRIGORIOS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.33431/2014 2 ## **JUDGMENT** This writ petition has been filed seeking a direction to the respondents to ‘renew’ a ' _kuthakapattom’_ lease in respect of 75 cents of land in Survey No.236/1 of Panavally Village in favour of the petitioners. There is also a prayer to direct the respondents to consider Ext.P9 request for the same purpose and to pass orders on the same after affording an opportunity of hearing to the petitioners. 2. The facts as set out in the writ petition reveal that one Govinda Panicker (now deceased), father of the petitioners, was in ownership and possession of 1 Acre and 9 cents of land in Survey No.197/9 of Panavally Village. It is stated that an extent of 75 cents of ‘ _kayalpuramboke’_ comprised in Survey No.236/1 of Panavally Village and lying adjacent to the aforesaid land in Survey No.197/9 of the Panavally Village was originally in possession of one Madhavi Amma, the mother of the aforesaid Govinda Panicker, from 1940 onwards. After the death of Madhavi Amma, Govinda Panicker continued in possession of the aforesaid 75 cents of ‘ _kayalpuramboke’_ in Survey No.236/1 of Panavally Village together with registered holdings in Survey No.197/9 of Panavally Village. 3. It appears that proceedings were taken against Madhavi Amma W.P.(C)No.33431/2014 3 under the provisions of the Kerala Land Conservancy Act, 1957 and prohibitory assessment was levied against her. As already stated, it appears that Govinda Panicker continued to be in possession of the land following the death of his mother Madhavi Amma. The said Govinda Panicker filed an application for assignment which was originally rejected by Ext.P1 order dated 29.8.1992. That order of the Tahsildar was set aside and the matter was directed to be reconsidered, following which the Tahsildar prepared Ext.P2 report on 4.5.1996 proposing to assign 75 cents of ‘ _kayalpuramboke’_ in Survey No.236/1 of Panavally Village by levying Rs.11,250/- i.e., at the rate of Rs.150/- per cent. The Government, through Ext.P3 order, decided that the land could be assigned to Govinda Panicker by collecting Rs.2,000/- per cent instead of the amount of Rs.150/- recommended by the Tahsildar in Ext.P2. Since Govinda Panicker had expired by then, the petitioners along with their mother challenged the Government Order before this Court on the premise that the land value fixed was abnormally high and that the said fixation of land value was completely against the recommendation of Tahsildar in Ext.P2. This Court, through Ext.P5 judgment dated 27.1.2006, quashed the order issued by the Government and directed that the matter be reconsidered. Thereupon, the Government issued Ext.P6 order cancelling the order of assignment and directing the recovery of the land in question. Ext.P6 order was challenged before this Court through W.P.(C)No.4208/2007. This Court, W.P.(C)No.33431/2014 4 through Ext.P7 judgment, found that the petitioners (children of Govinda Panicker) were not entitled to assignment of land. This judgment of a learned single Judge in W.P.(C)No.4208/2007 was affirmed by the Division Bench in the judgment dated 5.10.2012 in W.A.No.1756/2012. While dismissing the writ appeal through Ext.P8 judgment, the Division Bench took note of the submission made by the learned counsel for the petitioners (appellants in that case) that, if the petitioners have any interest in the land in terms of the ' _kuthakapattom’_ lease, it is open to them to work out their remedies in accordance with the law. It is in the aforesaid background that the present writ petition has been filed seeking the reliefs indicated hereinabove. 4. A counter affidavit has been filed by the 4[th] respondent stating _inter alia_ that the proceedings under the Land Conservancy Act were initiated against late Madhavi Amma, the mother of late Govinda Panicker and setting out the circumstances under which the land was leased out for the aforesaid Madhavi Amma. The counter-affidavit also states that going by the judgment of this Court in O.P.N0.17233/1996, it is clear that the lands situated on the side of the rivers or watercourses cannot be assigned to any person. 5. I have heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondents. In the light of the earlier proceedings before this Court, the petitioners have no claim for W.P.(C)No.33431/2014 5 assignment of the land in Survey No.236/1 of Panavally Village. The only question that remains to be considered is whether they have any right for a _'kuthakapattom’_ lease. The petitioners are obviously claiming that they are entitled to such a lease in terms of the observations of the Division Bench in W.A.No.1756/2012. The Division Bench, after holding that the petitioners are not entitled to assignment, observed as follows:- _“However, it is made clear that if the appellants have any interest or right in the land as per the Kuthakapattam lease as contended by the learned Senior counsel, it is open for the appellants to work out their remedy in accordance with law.”_ It is obvious from a reading of the aforesaid observation that the Division Bench was of the opinion that the rejection of the claim for the assignment will not stand in the way of the petitioners claiming _'kuthakapattom’_ lease in terms of the ‘ _Kuthakapattom Rules, 1947 (Travancore)’_ (hereinafter referred to as ‘the Rules’) if, they are entitled to the same. A reference to the Rules will show that a _'kuthakapattom’_ lease can be granted without a limit of time or for a definite period. Rule 6 of the Rules deals with a _'kuthakapattom'_ without limit of time and refers to the kinds of leases that can be granted without a limit of time. Five kinds of leases can be granted without a limit of time under Rule 6 of the Rules, set out in sub-Rules (i) to (v) of Rule 6:- > _(i)Lease of tress on poramboke land which have already been given out without limit of time under the Rules of 1074 or under the subsequent_ W.P.(C)No.33431/2014 6 ## _Kuthakapattom Rules;_ _(ii) Lease of trees which may hereafter be given under these rules. The existing trees on poramboke land such as public roads, banks of canals and irrigation tanks, fields, bunds etc. shall be leased on Kuthakapattom without limit of time to the ryots, provided there is clear and indubitable evidence that they have been planted and nurtured by them under the bona fide belief that the land belonged to them and that such lease is not prejudicial to public interest;_ _(iii) Trees on poramboke land for which patta has been granted and which now exists on the ground shall be treated as being held hereafter on Kuthakapattom without limit of time under these rules;_ _(iv) Lease of shop sites in bazaars on ground rent;_ _(v) Lease of Government lands occupied bona fide before the date of the Puduval Rules of 1932 i.e (06/07/1932).”_ The other category of ' _kuthakapattom’_ lease is a lease with a limit of time and is dealt with under Rule 7 of the Rules. Rule 7 (a) and (b) read as follows:- _“7. (a) Kuthakappattom for definite periods relates and includes-_ _(i) Leases of Government lands occupied bonafide between the years 1932 and 1945;_ _(ii) Leases of Government lands occupied after 1945;_ _(iii) Leases of unoccupied Government lands or trees standing thereon or both._ _(b) The lease under (i) above shall invariably be granted to the occupant thereof for a period of 12 years renewable thereafter and the leases under (ii) the (iii) above shall only be by public auction.”_ It is obvious from a reading of Rule 6 of the Rules that the petitioners cannot claim a lease under Rules 6(i) to (v). Then the question is whether the W.P.(C)No.33431/2014 7 petitioners are entitled to lease under Rule 7 of the Rules. The petitioners have no claim for a lease under Rule 7(i) of the Rules. It is clear from a reading of Rule 7(b) that a lease in terms of Rules 7(a) (ii) and (iii) can be granted only by public auction. Therefore, there is, in my view, no provision under the ‘ _Kuthakapattom’_ Rules enabling the petitioners to claim a _'kuthakapattom’_ lease in respect of 75 cents of ‘ _kayalpuramboke’_ comprised in Survey No.236/1 of Panavally Village. 6. There is yet another reasons as to why the claim of the petitioners cannot be entertained. This Court, by a brief judgment in O.P.No.17233/1996, held that the Government or the revenue officials shall not assign the land on the side of the river, or watercourses to any person. The Supreme Court in _**Sarvepalli Ramaiah (Dead) as per Legal representative and others**_ v. _**District Collector, Chittoor District and others;**_ 2019(4) SCC 500 held as follows:- _**“49.** This Court has time and again emphasised the need to retain and restore water bodies and held that water bodies are inalienable. Land comprised in water bodies cannot be alienated to any person even if it is dry. Reference may be made to the judgments of this Court in:_ _(1) Susetha v. State of T.N. [Susetha v. State of T.N., (2006) 6 SCC 543] ;_ _(2) M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1997) 3 SCC 715] , and_ _(3) Intellectuals Forum v. State of A.P. [Intellectuals Forum v. State of A.P., (2006) 3 SCC 549]”_ It is clear from the pleadings that the land in respect of which lease has been W.P.(C)No.33431/2014 8 sought is or was a water body. In view of the categoric finding of the Supreme Court that the land comprised in water bodies cannot be alienated to any person, even if it is dry, I have no hesitation to hold that the petitioners are not entitled to any lease. 7. Thus, on the finding that the petitioners are not entitled to lease under the ‘ _Kuthakappattom’_ Rules and also on the finding that the land comprised in water bodies cannot be alienated in any manner, going by the law laid down in _**Sarvepalli Ramaiah**_ (supra), I hold that the petitioners are not entitled to any relief. The writ petition fails and is accordingly dismissed. The respondents shall take steps to ensure that 75 cents of ‘ _kayalpuramboke’_ comprised in Survey No.236/1 of Panavally Village is restored to the possession of the Government and that the said land is restored to its original state prior to occupation by the predecessors-ininterest of the petitioners. This shall be done within a period of three months from the date of receipt of a certified copy of this judgment. sd/- **GOPINATH P. JUDGE** acd W.P.(C)No.33431/2014 9 ## **APPENDIX OF WP(C) 33431/2014** PETITIONER EXHIBITS EXT.P1 - TRUE COPY OF ORDER PASSED BY THE REVENUE DIVISIONAL OFFICERDATED 29-081992 EXT.P2 - TRUE COPY OF THE REPORT SUBMITTED BY THE TAHASILDAR BEFORE THE DISTRICT COLLECTOR ON 04-05-1996 EXT.P3 -TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED 30-09-1999 EXT.P4 - TRUE COPY OF THE ORDER IN THE PRESCRIBED FORM UNDER RULE 9 OF LAND ASSIGNMENT RULES EXT.P5 - TRUE COPY OF THE JUDGDMENT IN O.P.NO.10421 OF 2000 DATED 27-1-2006 OF THIS HON'BLE COURT. EXT.P6 - TRUE COPY OF THE ORDER DATED 151-2007 ISSUED BY THE 1ST RESPONDENT EXT.P7 - TRUE COPY OF THE JUDGMENT IN WPC.NO.4208/2007 DATED 31-05-2012 OF THIS HON'BLE COURT. EXT.P8 - TRUE COPY OF THE JUDGMENT IN WA NO.1756/2012 DATED 05-10-2012 OF THIS HON'BLE COURT. EXT.P9 - TRUE COPY OF THE REPRESENTATION DATED 10-05-2014 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT EXT.P10 - TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 4TH RESPONDENT.